Academic journal article Defense Counsel Journal

Apocalypse Now? Post-Sale Duty to Warn

Academic journal article Defense Counsel Journal

Apocalypse Now? Post-Sale Duty to Warn

Article excerpt

Writing in the July issue of the newsletter of the Toxic and Hazardous Substances Litigation Committee, Kurtis B. Reeg of the St. Louis office of Sonnenschein Nath & Rosenthal discusses the cases and advises defense counsel to marshal their facts and use motions in limine:

In determining the adequacy of a warning, courts usually consider the placement of the warning, its language, and how it may or may not impress the average user. During its evaluation, the court also considers the dangerous nature of the product, the form in which it is used, the burden to be imposed by requiring warnings, and the likelihood that the particular warning will be adequately communicated to those who will foreseeably use the product. "A warning, no matter how well stated or placed, is inadequate if it has no reasonable likelihood of reaching a foreseeable user and, thereby performing its intended function of risk reduction." Brown v. Bay State Abrasives, 821 S.W.2d 531, 533 (Mo.App. 1991).

Many states, Missouri among them, have adopted the state of the art defense in products cases. "State of the art" in Missouri means that the dangerous nature of the product was not known and could not reasonably have been discovered at the time the product was placed into the stream of commerce. R.S.Mo. 537.764.1. It can be a complete defense for failure to warn claims and should be asserted whenever possible. R.S.Mo. 537.764.2. But it does not preclude negligence claims. R.S.Mo. 537.764.3.

Restatement stirs the waters

With the advent of the Restatement (Third) of Torts: Products Liability, plaintiffs and defendants alike are scrambling to discover and invoke new causes of action and defenses endorsed by the American Law Institute. One of the fertile grounds for development on both sides is the postsale duty to warn. In July, the first Missouri case submitted under the Restatement theory of post-sale duty to warn resulted in a $20 million actual and $30 million punitive damage award. Mary Gordon v. BRK Brands, Inc., Cause No. 99200771 (St. Louis City, Missouri Circuit Court, July 1, 1999) (smoke detector with alleged propensity to fail to sound in smouldering fires did not sound alarm, resulting in deaths of two children).

Courts are embracing this post-sale claim by increasing numbers, based in part on negligence principles and their aberrant application in products cases. The new Restatement has given validation to certain prior decisions and the notion of an aftersale obligation to warn. This writer expects to see the plaintiff's bar argue for the application and expansion of this doctrine in toxic tort, hazardous waste and other environmental cases where any "product" or substance is alleged to have caused harm.

The defense bar and its clients should be forewarned and forearmed. Understanding the advent and application of this theory in the products context should assist practitioners in its development in other arenas.

Assumption of post-sale duty

The negligence doctrine by which some courts have previously imposed a post-sale duty on manufacturers was the voluntary or implied assumption of a duty to improve the safety of a manufacturer's product. See Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 532 (Tex.App. 1979) (discussed below); Hodder v. Goodyear Tire and Rubber Co., 426 N.W.2d 826 (Minn. 1988) (manufacturer had continuing duty to warn where it had undertaken to warn users of dangers associated with its K-rims).

For example, in Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401 (N.D. 1994), the plaintiff was seriously injured while inflating a 16" light truck tire on a mismatched 16 1/2" wheel. The trial court granted the defendant's motion for summary judgment regarding a post-sale warning about the dangers of mismatching 16" tires with 16 1/2" wheels.

The Supreme Court of North Dakota found that it would be an unreasonable burden on manufacturers to trace the purchasers or current owners of the tires, a mass-produced and widely distributed product. …

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